Burma and the Rule of Law

Last Thursday I had the pleasure of attending a talk about the rule of law by the Burmese opposition leader Aung San Suu Kyi, who has good reason to have opinions about the subject. Suu Kyi spent nearly fifteen years under house arrest for her pro-democracy activities against the socialist government that ruled her country (and ran it into the ground) from 1962 to 2011. Labeled “a destructive element” by the regime, she was awarded a Nobel Peace Prize in 1991.

Suu Kyi was in town on the invitation of one the undergraduate colleges at Yale, and a fellow of the college was able to snag me a ticket toward the front of the hall where she spoke (it’s nice to have such friends!). From there, it was easy to see that Suu Kyi is both a charming and an electrifying presence—though only some of the wattage comes through in this video of the lecture:

The Burmese opposition party, the National League for Democracy (NLD), aspires to bring three basic changes to the country: constitutional reform, an end to ethnic conflict, and the establishment of the rule of law. The first two pillars of this platform are grand enough. Regarding constitutional reform, for instance, consider the bracing fact that Myanmar’s current constitution guarantees one-quarter of the seats in the national legislature to the military (click here and then see Article 109 on page 39; it’s also instructive to search for “commander-in-chief” in the pdf file). Likewise, bringing security, trust, and harmony to a diverse country with substantial ethnic and religious minorities, especially in the border regions, will not be easy.

But Suu Kyi emphasized that the most important objective of the NLD is the establishment of the rule of law. The process will begin with the reform of the country’s judiciary. Myanmar judges have been under the thumb of military authorities for decades, and they are notorious for corruption; the rule of law will require judicial institutions that are both independent and clean. In making the rule of law the central objective of democratic reform, Suu Kyi explained, NLD leaders had learned from the recent negative example of Cambodia, where democratic activists failed to recognize the centrality of the rule of law to democracy itself—with ill-fated results.

Establishing the rule of law in Burma—creating a society in which law constrains state power rather than being merely a tool by which the state wields power—will take a long time: the reform will challenge a great many powerful, vested interests, many of whose members do not flinch from violence. But there will also be a deeper challenge worth bearing in mind.

In the wake of the Anglo-Burmese wars, from 1824-86, Burma was governed as part of the British Indian administration. Justice was done in English courts, and the rules applied were the result of “a history of the accommodation between English principles and indigenous laws” (the words are those of the great legal historian of southeast Asia M. B. Hooker). The primary source of such indigenous laws were the dhammathats, collections of Buddhist legal and ethical materials that draw deeply on related Hindu texts and that remain the ultimate source of Burmese legal thought. One of the marked characteristics of the Buddhist legal tradition, as I’ll discuss in future posts, is its strong anti-legalist character—its profound ambivalence toward law as a system of social and political organization.

Ironically, the socialists who ruled the country in the wake of the military coup in 1962 adhered to a tradition even more resolutely anti-legal in orientation. In the Marxist view, law is not supreme over political authority; rather, law is an instrument used by political authority. Law gives way to pure administration.

As Burmese democrats struggle to modernize their country under the banner of the rule of law, then, they also will be faced with the task of transforming the deep-seated anti-legal orientation of their society—that is, transforming their concept of law itself. In 1971, the scholar Adda Bozeman wrote of the future of southeast Asia: “The records of the present and the past do not suggest that law will be the basic principle of political organization in the region, or that peace and respect for the territorial integrity of states will be dominant ideals in the conduct of international relations … the viability of states will continue to depend upon the character of leading personalities.” I hope that she was incorrect.